Class-Action Filed Against Bank of America for Employment Discrimination Against Non-Citizens

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MALDEF, May 3, 2018 – “Bank of America illegally denies employment to qualified applicants based on their immigration status even though they are authorized to work in the United States, a lawsuit filed in federal court today charged.

MALDEF (Mexican American Legal Defense and Educational Fund) and the law firm Elliot Morgan Parsonage PLLC of Winston-Salem, N.C., filed the suit on behalf of Daniel Marques, a 27-year-old native of Brazil who is a recipient of Deferred Action for Childhood Arrivals (DACA).

Marques is authorized to work by U.S. Citizenship and Immigration Services, but he was abruptly disqualified from consideration for a job with Merrill Lynch Wealth Management, a division of Bank of America after he informed the company of his DACA grant, the lawsuit states.

Bank of America is accused of violating the federal Civil Rights Act of 1866, which prohibits intentional discrimination based on alienage.

“Any company, like Bank of America, with a significant Latino customer base and that seeks to build further business with the growing Latino community, would do well to avoid policies or practices that discriminate, irrationally, on the basis of immigration status,” said Thomas A. Saenz, MALDEF president, and general counsel.

Marques submitted an application in March 2016 through Bank of America’s online job application portal for a position in New Jersey as a Practice Management Development Associate within the financial advisor program of Merrill Lynch Wealth Management. He received an email soon thereafter from Bank of America’s vice president, the executive recruiter for the mid-Atlantic market to schedule a March 30 telephone interview. The vice president informed Marques during the interview that as a non-citizen applicant, he was required to be eligible to work in the United States “without limitations.”

After the phone interview, the executive recruiter sent Marques an email the same day saying she would recommend further interviews. Marques responded with a request for further clarification of her statement that he would need work authorization “without limitations,” and attached a copy of his valid Employment Authorization Document, which is renewable every two years under DACA.

On April 4, 2016, the executive called Marques to say that he was disqualified from further consideration for the job because he is a DACA recipient. Marques sent follow-up emails seeking more specific information, but he did not receive any responses.

“We are determined to vindicate the full rights afforded to immigrants with federal work authorization,” said Burth López, MALDEF staff attorney, and counsel in the case. “Companies may not pick and choose among work-authorized job applicants based on the applicants’ immigration status.”

The lawsuit seeks class-action status on behalf of all non-citizens who were authorized to work in the United States, including other holders of deferred action, refugees, and visa holders, and who were denied employment by Bank of America after April 4, 2016, because of their immigration status.

“Elliot Morgan Parsonage PLLC is looking forward to working with MALDEF to fight employment discrimination against young people with DACA,” said co-counsel Helen L. Parsonage.

The lawsuit is the third filed by MALDEF in the past year challenging employment policies that discriminate against DACA recipients. Last July, MALDEF and co-counsel Outten & Golden LLP sued consumer product giant Procter & Gamble on behalf of a former college student who had been denied a paid internship based on his DACA status.

The case is Daniel Marques v. Bank of America Corporation, Case No. 3:18-cv-00228, in the U.S. District Court for the Western District of North Carolina, Charlotte Division.

Read the complaint here.”

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Two New AAO I-601 Hardship Waiver Victories

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Alan Lee writes: “The law firm won two recent non-precedential decisions at the U.S.C.I.S. Administrative Appeals Office which sided with us in our appeals of I-601 denials.  An I-601 approval is required to waive grounds of inadmissibility, which in these cases involved fraud or misrepresentation.  The standard required for waiver approval is the establishment of extreme hardship to a U. S. citizen or lawful permanent resident spouse or parent.  Following such a determination of extreme hardship, U.S.C.I.S. must also make a decision on whether a waiver should be approved in the discretion of the agency.  The decisions may be of some interest to the readers.

In the first one, Matter of L-C-, ID #553828 (AAO Nov. 2, 2017), a large factor in establishing extreme hardship was that although both applicant and qualifying spouse were Chinese, the spouse was born and raised in Hong Kong, and had no ties to mainland China, the home country of the applicant.  Also that he maintained that he was unfamiliar with the language, culture, and customs of China.

In the second case, Matter of P-Y-K-, ID #639671 (AAO Oct. 31, 2017), the AAO favorably balanced on the side of the applicant the negative factors on discretion of fraud or misrepresentation when procuring a nonimmigrant visa and subsequently entering the United States, the applicant’s failure to depart pursuant to a voluntary departure in 1987, her deportation order in 1993 (which we had previously reopened and terminated), and periods of unlawful presence and employment in the U. S. against a showing of many factors including her son’s service in the Armed Forces of the U. S.”

The full decisions can be read here: Matter of L-C-, and Matter of P-Y-K-.

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AAO 212(h) Hardship Waiver Victory: Matter of D-M-V-, ID# 15302

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Matter of D-M-V-, ID# 15302 (AAO Jan. 28, 2016) – “The Applicant was found to be inadmissible to the United States pursuant to section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of crimes involving moral turpitude. He filed a Form 1-601, Application for Waiver of Grounds of Inadmissibility, on October 10,2014. The Applicant seeks a waiver of inadmissibility pursuant to section 212(h) of the Act, 8 U.S.C. § 1182(h), in order to reside in the United States with his U.S. citizen family members. In a decision dated April 2, 2015, the Director denied the Form 1-601 as a matter of discretion, citing to a lack of evidence of rehabilitation or family contribution, additional criminal convictions, and sporadic employment as the negative factors that outweighed the positive factors in determining that discretion was not warranted. On appeal, the Applicant asserts that the Director did not consider all of the evidence, including evidence of the Applicant’s mental health condition, and failed to consider all of the hardship factors in the aggregate or follow and apply relevant case law, particularly Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996), with regard to the exercise of discretion. The Applicant submits a brief and resubmits evidence filed with the Form 1-601. … When considering the totality of the circumstances, we find that the positive factors in this case, including the Applicant’s family ties, length of residence in the United States, and hardship to himself and his family members if he is removed, outweigh the negative factors, and he merits a favorable exercise of discretion. … Accordingly, we will sustain the appeal.”  [Hats off to Michael Carlin!]

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