UNITED STATES DEPARTMENT OF JUSTICE

19 OCAHO no. 1562a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

September 23, 2024

US TECH WORKERS ET AL.,

Complainant,

v.

IO DATASPHERE, INC.,

Respondent.

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8 U.S.C. § 1324b Proceeding

OCAHO Case No. 2024B00076

Appearances: John M. Miano, Esq., for Complainant

Walter T. Markovic, corporate representative for Respondent

ORDER TO SHOW CAUSE – DEFICIENT COMPLAINT

I.

INTRODUCTION

This case arises under the employment discrimination provisions of the Immigration and

Nationality Act (INA), as amended, 8 U.S.C. § 1324b. On March 19, 2024, Complainant filed a

complaint alleging Respondent violated 8 U.S.C. § 1324b(a)(1)(B).

On June 24, 2024, Respondent filed its Answer generally denying liability.

The Court now issues this Order requiring Complainant submit a filing showing cause as to why

this Complaint should not be dismissed. Failure to timely submit a filing could cause the

Complaint to be dismissed. 28 C.F.R. § 68.10(b) (giving the Administrative Law Judge the ability

to dismiss a complaint for failure to state a claim without a motion); see also Zajradhara v. Manbin

Corp., 19 OCAHO no. 1553a, 4-5 (2024) (dismissing a § 1324b claim without prejudice where

complainant failed to provide any argument or evidence regarding the allegation in his response

to an order to show cause on jurisdiction).

Parties should note that, until this matter is resolved, any scheduled prehearing conferences will

be cancelled.

19 OCAHO no. 1562a

II. CONTENTS OF THE COMPLAINT

OCAHO uses a Complaint Form. The form poses a series of questions designed to facilitate the

provision of statements which would give rise to an alleged violation of the law. The Complainant

in this case only completed portions of the Complaint Form, but did include additional pages.

Complainant identifies the “citizenship or immigration status at the time of the alleged

discrimination [was] United States Citizen or National.” Compl. 2.1 The Complaint asserts the

discrimination occurred “because… of citizenship status.” Id. at 6.

Section 7 of the Complaint form covers “Discrimination in Hiring, Recruitment, or Referral for a

Fee, 8 U.S.C. § 1324b(a)(1).” Compl. 6. For ease of reference, following Section 7 as completed

by Complainant:

1

Pinpoint citations to the Complaint and other Court filings are to the page numbers of the PDF,

as opposed to the page numbers printed at the bottom of the page.

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19 OCAHO no. 1562a

Compl. 6-7. The Complaint goes on to clarify there are no allegations of discrimination in firing,

document abuse, or retaliation. Id. at 7-10. The Complaint includes the “IER Charge Form.” Id.

at 15. Based on the charge filed with IER, the Complainant alleges the date of discrimination

occurred on January 21, 2023 (and is ongoing).2 Id. at 16. In the context of the IER Charge Form,

Complainant was asked to “[e]xplain in detail what happened when the Injured Party discriminated

against;” and Complainant responded, “See attached.” Id.

Beginning at page 21 of the Complaint, Complainant provides a text document which states

“[Respondent] began engaging in an unlawful scheme of recruitment based on immigration

Complainant offers no explanation for his decision to leave this portion of the OCAHO

Complaint Form blank.

2

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status… [when it] targeted its recruitment efforts towards those in H-1B visa 3 status [through

Chicago H-1B Connect].” Compl. 21. The Complaint then goes onto describe the activities of

“Chicago H-1B Connect,” who is not a named party in this matter. Id. at 21-22. 4 The text

document ends with “By specifically targeting non-immigrants in H-1B for employment,

Respondent affirmatively discouraged protected individuals from applying for employment and

has engaged in unlawful discrimination based on citizenship status.” Id. at 21.

At pages 23 to 24 of the Complaint, Complainant provides full legal names and contact information

for “injured parties” – nine individuals in total.

At page 29,5 the Complaint contains another text document which states:

The subject of this complaint is a conspiracy by forty-three Chicago

area employers to engage in an unlawful program of recruitment

based on immigration status. Operating under the collective name

“Chicago H-1B Connect” these employers continue to promote their

targeted requirement of H-1B non-immigrants on a web site,

through press releases, and through media interactions.

US Tech Workers filed separate charges against each of the

conspirators on behalf of named members who made applications to

3

The Court takes official notice, see 28 C.F.R. § 68.41, of the following from USCIS: “This

nonimmigrant classification applies to people who wish to perform services in a specialty

occupation, services of exceptional merit and ability relating to a Department of Defense (DOD)

cooperative research and development project, or services as a fashion model of distinguished

merit or ability.” U.S. Citizenship and Immigration Services, H-1B Specialty Occupations,

https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations (last visited

August 26, 2024).

Assuming it is the first category or H-1B visa holders at issue (Specialty Occupation, and not DoD

research & development or fashion model), USCIS also states the following: “The occupation

[must] require[] [t]heoretical and practical application of a body of highly specialized knowledge;

and [a]ttainment of a bachelor’s degree of higher degree in the specific specialty (or its equivalent)

as a minimum for entry into the occupation in the United States.” Further H-1B Specialty

Occupations require the petitioner to submit a Labor Condition Application (LCA) certified by the

Department of Labor (DOL) alongside other required petitions. Id.

4

The Complaint also contains a series of hyperlinks related to what appear to be news or other

websites. The external content of hyperlinked material is not included with the Complaint. As a

practical matter, the Court does not open hyperlinks. See Ravines de Schur v. Easter SealsGoodwill N. Rocky Mountain, Inc., 15 OCAHO no. 1388b, 4 (2021) (“[T]he Court will not

consider information or documents contained in hyperlinks.”).

5

Pages 25-28 appear to be a scan duplicate of the previous pages.

4

19 OCAHO no. 1562a

them. US Tech Workers is filing a separate complaint for each

conspirator as well.

The participants in the unlawful conspiracy are [Complaint contains

organizations and contact addresses for organizations].

III.

LAW AND ANALYSIS

A. Failure to State a Claim

A Complaint must state a claim upon which relief can be granted. 28 C.F.R. § 68.10(b).

Respondent may file a motion highlighting this issue to the Court, and alternatively, “[t]he

Administrative Law Judge may dismiss the complaint . . . without a motion from the respondent,

if the Administrative Law Judge determines that the complainant has failed to state a claim upon

which relief can be granted.” 28 C.F.R. § 68.10(b). See Zajradhara v. Jin Joo Corp., 19 OCAHO

no. 1554a, 2-3 (2024) (dismissing § 1324b retaliation claim for failure to state a claim under ALJ’s

own authority); Patel v. USCIS Boston, 14 OCAHO no. 1353, 3-4 (noting that OCAHO ALJs may

sua sponte dismiss a complaint for failure to state a claim, after providing complainant an

opportunity to show cause why the complaint should not be dismissed).

Whether potential deficiencies in a Complaint are brought to the Court’s attention by way a motion,

or based on its own determination, the same legal standards for analyzing the pleadings apply.

OCAHO’s Rules of Practice and Procedure provide that complaints shall contain: (1) “A clear and

concise statement of facts, upon which an assertion of jurisdiction is predicated”; (2) “The alleged

violations of law, with a clear and concise statement of facts for each violation alleged to have

occurred”; and (3) “A short statement containing the remedies and/or sanctions sought to be

imposed against the respondent.” 28 C.F.R. § 68.7(b)(1)-(4).

As was recently noted:

‘Statements made in the complaint only need to be ‘facially

sufficient to permit the case to proceed further,’ . . . as ‘[t]he bar for

pleadings in this forum is low.’ Sharma v. NVIDIA Corp., 17

OCAHO no. 1450, 3 (2022) (citing United States v. Mar-Jac

Poultry, Inc., 10 OCAHO no. 1148, 10 (2012), and then citing

United States v. Facebook, Inc., 14 OCAHO no. 1386b, 5 (2021)).

“OCAHO’s pleading standard does not require a complainant [to]

proffer evidence at the pleadings stage . . . Rather, pleadings are

sufficient if ‘the allegations give adequate notice to the respondents

of the charges made against them.’” Id. (quoting Santiglia v. Sun

Microsystems, Inc., 9 OCAHO no. 1097, 10 (2003)); see also MarJac Poultry, Inc., 10 OCAHO no. 1148, at 9….

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To give rise to an inference of discrimination, complaints must

include information that links the complainant’s protected class and

the employment action in question. [Wangperawong v. Meta

Platforms, Inc., 18 OCAHO no. 1510c, 7 (2024); see Sharma v.

NVIDIA Corp., 17 OCAHO no. 1450, 5 (2022). A complainant

meets this standard by “identif[ying] a theory by which [the]

Respondent allegedly violated 8 U.S.C. § 1324b” in a way that

“succinctly yet clearly” inform the respondent why the complainant

has brough the suit. Sharma v. NVIDIA Corp., 17 OCAHO no.

1450, 7 (2022).

In contrast, if a § 1324b complainant does not identify why he

believes that the relevant employment action was discriminatory,

this is not sufficient to meet OCAHO’s pleading standard. See, e.g.,

A.S. v. Amazon Webservices Inc., 14 OCAHO no. 1381d, 16 (2021)

(dismissing claim of citizenship status discrimination claim when

the complainant merely asserted “in a general and conclusory

fashion that Respondent discriminated against him based on his

citizenship status, without citing to specific facts giving an inference

to causation”) (citing, inter alia, Thompson v. Sanchez Auto Servs.,

LLC, 12 OCAHO no. 1302, 7–8 (2017) (dismissing discrimination

claim where the complaint was “bereft of any allegations related to

[] national origin apart from cursory assertions”)); Wangperawong

v. Meta Platforms, Inc., 18 OCAHO no. 1510c, 7–8 (2024)

(allegations that the complainant applied for a position, that he was

qualified, and that he was not selected, insufficient to state a claim

for hiring discrimination).

US Tech Workers v. G2, 19 OCAHO no. 1569a, 6-7 (2024).

B. Recruitment Violations under 8 U.S.C. § 1324b(a)(1)(B)

Under 8 U.S.C. § 1324b, “[i]t is an unfair immigration-related employment practice for a person

or other entity to discriminate against any individual 6…” based on national origin or citizenship

status, “with respect to… recruitment or referral for a fee, of the individual for employment…” 8

U.S.C. § 1324b(a)(1)(A)-(B).

As the Court recently noted:

Lasa Marketing may be one of the first instances of OCAHO setting

forth elements of a prima facie case as it relates to a “recruitment”

allegation. United States v. Lasa Marketing Firms, 1 OCAHO no.

141, 950, 965 (1990). There, the ALJ outlined that complainant

could: (1) show [she] was a protected individual; (2) [she

6

Additional caveats removed for ease of reading.

6

19 OCAHO no. 1562a

approached Respondent, a recruiting entity] and sought to apply for

a position or be referred to an advertised position; (3) despite her

qualifications she was not referred or considered; and (4) the

Respondent [a recruiting entity] referred U.S. citizens and

permanent resident for employment subsequent to the rejection of

Complainant. Id. at 965, n. 15.

In another early precedential case, Williams v. Lucas & Assocs., 2

OCAHO no. 357, 423, 433 (1991), the ALJ considered a recruiter

who prescreened applicants for citizenship status. While that

complainant could certainly show some elements of a prima facie

case, he was ultimately unsuccessful because he failed to

demonstrate he was qualified for any position related to the

recruitment efforts.

In Jablonski v. Robert Half Legal, 12 OCAHO no. 1272 (2016), the

ALJ dismissed a recruitment-based discrimination claim. In that

case, the complainant engaged with a recruitment and staffing

company (applying to jobs for which she was not selected).

Ultimately, she failed to plead much else, concluding that

respondent hired “visa applicants” (or other non-citizens) instead.

Id. at 7. The Court there, after characterizing her allegations as “bald

conclusion[s],” noted “[s]peculation and hypotheses cannot stand in

or substitute for facts, and even under the most liberal of pleading

standards, claims lacking an adequate factual basis are subject to

dismissal.” Id.

Recently, in United States v. Facebook, 14 OCAHO no. 1386b, 8

(2021), the Court found the complainant (IER) met OCAHO’s

pleading standards when it alleged “a protected group, ‘U.S.

workers,’ . . . allegedly experienced disparate treatment in the

recruiting and hiring practices of Respondent based on their

citizenship or immigration status.” Specifically, that complainant

alleged that respondent engaged in a “scheme of set-asides of certain

positions for only temporary visa holders and ineffective methods

of recruitment designed to solicit minimal, if any response from

individuals outside the targeted group of temporary visa holders.”

Id. at 9.

G2, 19 OCAHO no. 1569a, at 8-9.

7

19 OCAHO no. 1562a

C. Complaint Deficiencies

Based on the content of the Complaint, it appears it fails to state a claim upon which relief can be

granted. The Complaint identifies nine “protected individuals,” 7 but it is difficult to divine much

else relative to what this Respondent specifically did to violate the law.

Complainant does not identify when or how these individuals engaged with Respondent (or even

when or how they engaged with “Chicago H-1B Connect” 8). See Lasa Marketing Firms, 1

OCAHO no. 141 at 965 n. 15. Complainant does not allege, with any specificity, what positions

were vacant (i.e. for what positions Respondent was allegedly recruiting) – indeed, Complainant

does not even allege a type or class of position for which Respondent was recruiting. Id.

Complainant (understandably) does not (and perhaps on this fact pattern, cannot) allege or explain

how or whether the individuals identified in the Complaint were qualified for positions or types of

positions at issue. See id.; see also Lucas & Assocs., 2 OCAHO no. 357, at 433. Furthermore,

Complainant does not allege whether Respondent ever filled vacancies, and if so, with whom.

Jablonski, 12 OCAHO no. 1272 at 7.

“The existence of such a job board is not a per se violation of § 1324b - a sufficiently pled

complaint must plead more. See Facebook, 14 OCAHO no. 1386b at 8.” G2, 19 OCAHO no.

1569a, at 9.

IV.

COMPLAINANT ORDERED TO SHOW CAUSE

The Court now ORDERS Complainant to submit a filing explaining why his Complaint should

not be dismissed for failure to state a claim upon which relief can be granted within 21 days of

receipt of this order. Respondent shall have an opportunity to be heard and may submit matters

for the Court’s consideration within 14 days of receipt of Complainant’s submission (if any) or

October 15, 2024, whichever is sooner.

SO ORDERED.

Dated and entered on September 23, 2024.

__________________________________

Honorable Andrea R. Carroll-Tipton

Administrative Law Judge

7

Insofar as Complainant alleges they are all citizens of the United States. “The term ‘protected

individual’ means an individual who is a citizen or national of the United States.” 8 U.S.C. §

1324b(a)(3)(A).

8

And this is, assuming, arguendo, Chicago H-1B Connect and IO Datasphere are interchangeable

entities (a point which Respondent does not concede).

8