Class Action Lawsuit Targets TN Visa Abuse

By: Gladys Gervacio

A new class action lawsuit alleges that two American companies, SMART Alabama, LLC and AGWM United, LLC, have used the TN visa to hire professional workers for underpaid, unskilled positions. If successful, the lawsuit could make it more difficult for US employers to sponsor employees on TN visas.

what is the TN visa? 
The TN visa is a temporary work visa for Canadian and Mexican citizens to work in the United States in professional positions. TN visa beneficiaries must have a professional job offer and the qualifications required to perform the role. Qualifying positions include engineers, accountants, scientists, teachers, lawyers, and pharmacists.

Created under the North American Free Trade Agreement (NAFTA), TN status lasts three years and typically binds an employee to an employer for the duration of the visa.

What the lawsuit entails
According to the lawsuit, auto parts company SMART Alabama, LLC and staffing agency AGWM United, LLC have consistently used the TN visa to hire Mexican employees as engineers but instead employ them on auto part production lines. The lawsuit alleges that the companies defrauded the US government by claiming employees would be hired as engineers. Once TN status was approved, the companies would redirect the employees to the auto parts line. These employees allegedly worked long, grueling hours and were paid significantly less than US workers in the same positions. Further, the lawsuit claims that Mexican employees were treated in a discriminatory manner based on race and alienage.

The class action covers all TN visa holders who were employed at SMART and recruited by AGWM, asserting that AGWM and SMART committed recruitment fraud multiple times to force several TN visa holders to work in misrepresented positions. SMART and AGWM are accused of violating the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and Title VII of the Civil Rights Act of 1964.

The plaintiff is a resident of Mexico with a bachelor’s degree in mechanical engineering and a master’s degree in business. He claims he was offered a quality engineer position at SMART Alabama and communicated with AGWM United regarding the position. The lawsuit states at the time the offer was made, SMART knew they were not hiring for an engineering position, instead looking for a production line employee. He also alleges AGWM knew SMART was misrepresenting the position.

the case’s impact on tn visa sponsorship
The case places blame not only on the named companies, but also the “largely unregulated” nature of the TN visa. The lawsuit cites poor working conditions, misrepresentation of contacts, and other abusive practices for TN workers at large. These employment abuses are compounded by the TN visa program’s lack of oversight, transparency, and basic rights protections, unlike other employment visa programs regulated by the Department of Labor.

If successful, the lawsuit will likely result in more regulations for TN visa employers, as well as more precautions for TN visa recipients.

conclusion
The Chugh, LLP immigration team will continue to monitor the class action and provide updates as they become available. For questions regarding applying for a TN visa please contact your Chugh, LLP immigration professional.